HKSAR v. WONG MING SHEK, RICHARD

DCCC 510/2023

[2024] HKDC 354

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 510 OF 2023

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug" (Charge 1)  and a charge of "Possession of offensive weapons in a public place (Charge 2).

Summary of Facts

2.  About 12:25 a.m. on 27 October 2022, police officers intercepted the defendant and 4 other persons near Lamppost AD9778, Tin Yip Road, Tin Shui Wai for enquiry.  The defendant was found to be of wanted status.  The other 4 persons were allowed to leave.

3.  Upon hearing his wanted status, the defendant looked nervous and kept staring at a private car XN8093 ("the Car")  parked nearby (about 5 metres away). Upon search, a car key was found in the defendant's left front trouser pocket. When questioned, he stated that it was the key to the Car.

4.  The Car was searched and the following items were found :-

In the compartment between the driver's seat and the front passenger seat:

(i)  a large resealable plastic bag containing 8 small plastic bags which contained a total of 2.14 grammes of a solid containing 1.65 grammes of cocaine (collectively E1);

(ii)  a medium resealable plastic bag containing 10 small plastic bags which contained a total of 3.01 grammes of a solid containing 2.38 grammes of cocaine (collectively E2);

In the bonnet:

(iii)  a grey recycle bag containing (a)  two 66-cm long (when fully extended)  silver extendable batons with carrying pouches; and (b)  two 44-cm long beef knives with sheaths; and

In the rear trunk:

(iv)  two 79-cm long baseball bats (one red, one black).

5.  The defendant was arrested for "Possession of dangerous drugs".  Under caution, he stated that the cocaine was for his own consumption.  The defendant was also arrested for "Possession of offensive weapons".  Under caution, he stated that the knives, the bats and the extendable batons belonged to him.  They had nothing to do with others and the other persons had no knowledge of those items.

6.  The defendant also admitted under caution that he had driven the Car from Tin Yat Estate to Tin Yip Road. During the journey, no other persons had driven the Car and the car key was kept by him.

7.  The defendant now admits that he possessed E1 and E2 for the purpose of unlawful trafficking.

Mitigation & Sentence

8.  The defendant recently turned 24 and has 4 conviction records, which included 1 "Trafficking" offence.  Defence counsel Ms. Ng informed me that the defendant is single and resides with his parents and an elder sister in Tin Shui Wai.  In mitigation, Ms. Ng submitted that since his prison release in September 2021, the defendant began to work in catering promotion.  Owing to the pandemic, he often failed to meet his work targets.  Feeling frustrated, the defendant reconnected with his undesirable friends and got into trouble again.  Ms. Ng confirmed that she is not making any claim of self-consumption as mitigation.

9.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment.  Also, being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

10.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.

11.  In Charge 1, the defendant trafficked in 4.03 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 3 years and 3 months, which I would adopt.  With the timely guilty plea, the sentence is reduced to 26 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 26 months' imprisonment for this charge.

12.  Regarding Charge 2, there is no evidence showing that those weapons would be used any time soon or who would use them for what purpose.  Based on their quantity and the degree of their harmfulness, I consider 15 months' imprisonment to be the appropriate starting point.  With the timely guilty plea, the sentence is reduced to 10 months.   I sentence the defendant to 10 months' imprisonment for this charge.

13.  Although possessed simultaneously, dangerous drugs and offensive weapons are of completely different nature; and so are the purposes of possessing these 2 distinctive categories of articles.  Based on common sense, offensive weapons cannot be said to be part and parcel of drug trafficking or vice versa.  Bearing in mind the totality principle, I consider a global starting point of 4 years' imprisonment to be appropriate for both charges.  With the timely guilty pleas, the overall sentence is reduced to 32 months.  Hence, I order 6 months in Charge 2 to run consecutive to Charge 1.  Thus, arriving at a total prison term of 32 months.